These
three writ petitions, filed under Article 32 of the Constitution of India, 1950
(in short the 'Constitution'), question legality of certain terms in inviting
offers for implementation of the scheme called the "Detailed Scheme for
Capacity Building of Self Help Groups to Prepare and Supply Supplementary
Nutrition under the Integrated Child Development Service (in short the 'ICDS') Programme."
By order dated 7.10.2004 in Writ Petition (C) No. 196 of 2001 (People's Union for Liberties v. Union of India and Others) this
Court observed as under :- "We have gone through the fifth (August, 2004)
report of the Commissioners x x x.

Further,
the problem of using contractors for procurement has also been mentioned in the
report suggesting that it should be done by agencies and officers at the
government level." The following directions were issued:

"The
contractors shall not be used for supply of nutrition in Anganwadis and
preferably ICDS funds shall be spent by making use of village communities,
self-help groups and Mahila Mandals for buying of grains and preparation of
meals." ICDS is perhaps the largest of all the food and supplementation programmes
in the world which was initiated in the year 1975 with various objectives as
per the document prepared by the Planning Commission. It was also noted by this
Court that there was a problem in using contractors for procurement and in the
report of the Commissioners it was suggested that it should be done by agencies
and officers at the Government level. In that context, it was noted by this
Court as follows:

"The
Report also mentions that some of AWCS are operating from private houses
including those of grain dealers which it is suggested is not a healthy way of
working as it is likely to increase the chances of pilferage of the grain etc.
We are happy to note that as stated in the affidavit of State of Uttar Pradesh, it has made efforts to shift AWCS
to primary schools. It is a good example for other States to follow. The Report
also mentions about the attempt to centralize the procurements in some of the
States which has many fallouts. It has been explained in one of the affidavit
that the procurements is at district level and not at the State level. Further,
the problem of using contractors for procurement has also been mentioned in the
Report suggesting that it should be done by agencies and officers at the
Government level. These are only by way of illustrations as to facts and
figures given in Section 1 of the Report relating to Integrated Child
Development Services." In accordance with this Court's order the Delhi
Government framed a detailed scheme. The objective as appears from the scheme
is involvement of Self Help Groups (in short the 'SHGs'). The Scheme envisaged
that within 27 months SHGs would be framed and would completely take over the
running of the Anganwadis from the NGOs. Keeping in view the observations made
by this Court about the elimination of the contractors it was stipulated that
registered non-profit organizations with at least 3 years experience were
eligible to apply. Accordingly an advertisement titled "ICDS Expression
of Interest" was placed in newspapers.

Writ
petitioners question the rational of the stipulation regarding three years
experience of working as a non profit organization or public trust registered
under the Indian Societies Registration Act, 1860 (in short the 'Societies
Act'/'Public Trust Act'). According to them, this condition does not in any way
further the objectives and on the other hand keeps out genuine organizations.
It is pointed out that though the writ petitioners were registered less than
three years back, their functionaries have varied experience for long period.

Prayer
is made for a declaration that the three years period stipulated is irrational,
contrary to the objects of the scheme and should be declared to be invalid. The
eligibility criteria according to them should be on the basis of actual
experience of the persons who are in charge of the legal entities and not the
time period of three years as a registered entity. It is submitted that the
three writ petitioners have taken various projects and have wide experience and
to keep them out would be giving premium to inexperience.

Per
contra, learned counsel for the Government of NCT of Delhi, submitted that the
Government set up a committee of experts consisting not only of senior
Government officials but also other experts such as a representatives from the
Nutrition Department of Lady Irwin College, a representative of Care India, one of most reputed NGOs. and a
representative of the Commissioner who was appointed by this Court in the PUCL
case. The Committee scrutinize the applications (117 in number) and short
listed 60 entities and out of them 9 have been selected and out of them in the
case of one enquiry is being conducted to verify the credentials. Committee was
of the view that the three writ petitioners have not been registered for a
period of three years and, therefore, were ineligible. Writ petitioners have
raised a grievance that even though they have not registered for 3 years, the
experience of such individuals connected with the organization should be
treated as experience of the organization. The Committee examined this plea and
noted as follows:

"It
was pointed to the Committee that some NPOs were questioning their
ineligibility on the grounds that they had more than three years experience
even if they were registered as society/trust for less than three years. The
Committee confirming the criteria that no NPO which had been registered as a
society for less than three years could be considered under the scheme since the
experience which the said organization could have had as an unregistered
organization could not be counted for the purpose of this scheme and that any
relaxation of this account could lead to back- door entry of contractors who
may have got themselves registered as NGO recently only to gain entry into such
schemes without have social objectives of women empowerment as the actual
perspective for their work." It has been indicated in the counter
affidavit filed that the writ petitioners have not come with clean hands. They
are catering contractors having their own commercial interest and are now
trying to take up the project in the garb of NGO. Many erstwhile contractors
who have now been barred by this Court's order from entering ICG programme have
registered themselves as NGO entities to overreach the order of this Court. The
writ petitioners, it is to be noted, had approached the Delhi High Court. The
writ petitions were dismissed as withdrawn in view of submissions made that
this Court shall be approached.

The
eligibility criteria which form the subject matter of challenge read as
follows:

"Must
be a non-profit organization or public trust registered under the Indian
Societies Registration Act, 1860/ Public Trust Act.

At
least 3 years experience of working in a relevant field such as Child
Development, Nutrition, Formation of SHGs, Supplementary Nutrition, Home
Counseling, Nutrition Counseling, Pre-School Activities and women empowerment
related works." At this juncture we may take note of a submission by
learned counsel for the writ petitioners. It was submitted that the writ
petitioners were registered before this Court's order and therefore, it cannot
be said that they had registered only to overreach this Court's order. It is
pointed out by learned counsel for the respondent that the PUCL case was being
heard for a long time, and various details were being called for.

The
intention of this Court to keep contractors out of the picture was clearly
evident. Ekta Shakti Foundation (Writ Petition No. 232 of 2006) was registered
on 21.11.2003, Surya Society (Writ Petition No. 233 of 2006) was registered on
5.12.2003 and Jay Gee Society (Writ Petition No. 234 of 2006) was registered on
25.3.2004.

While
exercising the power of judicial review of administrative action, the Court is
not the appellate authority and the Constitution does not permit the Court to
direct or advise the executive in matter of policy or to sermonize any matter
which under the Constitution lies within the sphere of the Legislature or the
executive, provided these authorities do not transgress their constitutional
limits or statutory power.

(See Ashif
Hamid v. State of J. & K. (AIR 1989 SC 1899), Shri Sitaram Sugar Co. v. Union of India (AIR
1990 SC 1277). The scope of judicial enquiry is confined to the question
whether the decision taken by the Government is against any statutory
provisions or is violative of the fundamental rights of the citizens or is
opposed to the provisions of the Constitution.

Thus,
the position is that even if the decision taken by the Government does not
appear to be agreeable to the Court it cannot interfere.

The
correctness of the reasons which prompted the Government in decision making,
taking one course of action instead of another is not a matter of concern in
judicial review and the Court is not the appropriate forum for such
investigation.

The
policy decision must be left to the Government as it alone can adopt which
policy should be adopted after considering all the points from different
angles. In matter of policy decisions or exercise of discretion by the
Government so long as the infringement of fundamental right is not shown Courts
will have no occasion to interfere and the Court will not and should not
substitute its own judgment for the judgment of the executive in such matters.
In assessing the propriety of a decision of the Government the Court cannot
interfere even if a second view is possible from that of the Government.

The
Court should constantly remind itself of what the Supreme Court of the United
States said in Metropolis Theatre Company v. City of Chicago (1912) 57 L Ed
730. "The problems of Government are practical ones and may justify, if
they do not require, rough accommodations, illogical it may be, and
unscientific. But even such criticism should not be hastily expressed. What is
the best is not always discernible, the wisdom of any choice may be disputed or
condemned.

Mere
errors of government are not subject to our judicial review. [See: State of Orissa and others v. Gopinath Dash and
Others (2005) 13 SCC 495].

It was
submitted that in some other cases, a departure has been made. No definite
material has been placed in that regard. In any event, Article 14 has no
application or justification to legitimize an illegal and illegitimate action.

Article
14 proceeds on the premise that a citizen has legal and valid right enforceable
at law and persons having similar right and persons similarly circumstanced,
cannot be denied of the benefit thereof. Such person cannot be discriminated to
deny the similar benefit. The rational relationship and legal back up are the
foundations to invoke the doctrine of equality in case of persons similarly
situated. If some person derived benefit by illegality and had escaped from the
clutches of law, similar persons cannot plead nor court can countenance that
benefit had from infraction of law and must be allowed to be retained.

Can
one illegality be compounded by permitting similar illegal or illegitimate or
ultra vires acts? Answer is obviously no.

In Coromandel
Fertilizers Ltd. v. Union of India and Ors., [(1984) Supp SCC 457], it was held
in paragraph 13, that wrong decision in favour of any party does not entitle
any other party to claim the benefit on the basis of the wrong decision. In
that case, one of the items was excluded from the schedule, by wrong decision,
from its purview. It was contended that authorities could not deny benefit to
the appellant, since he stood on the same footing with excluded company.
Article 14, therefore, was pressed into service. This Court had held that even
if the grievance of the appellant was well founded, it did not entitle the
appellant to claim the benefit of the notification. A wrong decision in favour
of any particular party does not entitle another party to claim the benefit on
the basis of the wrong decision. Therefore, the claim for exemption on the
anvil of Article 14 was rejected.

If the
order in favour of the other person is found to be contrary to law or not
warranted in the facts and circumstances of his case, it is obvious that such
illegal or unwarranted order could not be made the basis of issuing a writ
compelling the respondent-authority to repeat the illegality to cause another
unwarranted order. The extraordinary and discretionary power of the High Court
under Article 226 cannot be exercised for such a purpose. [See : Secretary, Jaipur
Development Authority, Jaipur v. Daulat Mal Jain and Others [(1997) 1 SCC 35].

The
concept of equality as envisaged under Article 14 of the Constitution is a
positive concept which cannot be enforced in a negative manner. When any
authority is shown to have committed any illegality or irregularity in favour
of any individual or group of individuals other cannot claim the same
illegality or irregularity on ground of denial thereof to them.

Similarly
wrong judgment passed in favour of one individual does not entitle others to
claim similar benefits. In this regard this Court in Gursharan Singh & Ors.
v. NDMC & Ors. [1996 (2) SCC 459] held that citizens have assumed wrong
notions regarding the scope of Article 14 of the Constitution which guarantees
equality before law to all citizens. Benefits extended to some persons in an
irregular or illegal manner cannot be claimed by a citizen on the plea of
equality as enshrined in Article14 of the Constitution by way of writ petition
filed in the High Court. The Court observed:

"Neither
Article 14 of the Constitution conceives within the equality clause this
concept nor Article 226 empowers the High Court to enforce such claim of equality
before law. If such claims are enforced, it shall amount to directing to
continue and perpetuate an illegal procedure or an illegal order for extending
similar benefits to others.

Before
a claim based on equality clause is upheld, it must be established by the
petitioner that his claim being just and legal, has been denied to him, while
it has been extended to others and in this process there has been a
discrimination." In Jaipur Development Authority's case (supra) this Court
considered the scope of Article 14 of the Constitution and reiterated its
earlier position regarding the concept of equality holding:

"Suffice
it to hold that the illegal allotment founded upon ultra vires and illegal
policy of allotment made to some other persons wrongly, would not form a legal
premise to ensure it to the respondent or to repeat or perpetuate such illegal
order, nor could it be legalised. In other words, judicial process cannot be
abused to perpetuate the illegalities.

Thus
considered, we hold that the High Court was clearly in error in directing the
appellants to allot the land to the respondents." In State of Haryana & Ors. v. Ram Kumar Mann [1997
(3) SCC 321] this Court observed:

"The
doctrine of discrimination is founded upon existence of an enforceable right.
He was discriminated and denied equality as some similarly situated persons had
been given the same relief. Article 14 would apply only when invidious
discrimination is meted out to equals and similarly circumstanced without any
rational basis or relationship in that behalf. The respondent has no right,
whatsoever and cannot be given the relief wrongly given to them, i.e., benefit
of withdrawal of resignation. The High Court was wholly wrong in reaching the
conclusion that there was invidious discrimination. If we cannot allow a wrong
to perpetrate, an employee, after committing mis-appropriation of money, is
dismissed from service and subsequently that order is withdrawn and he is
reinstated into the service. Can a similarly Circumstanced person claim
equality under Section 14 for Reinstatement? The answer is obviously
"No".

In a
converse case, in the first instance, one may be wrong but the wrong order
cannot be the foundation for claiming equality for enforcement of the same
order. As stated earlier, his right must be founded upon enforceable right to
entitle him to the equality treatment for enforcement thereof.

A
wrong decision by the Government does not give a right to enforce the wrong
order and claim parity or equality. Two wrongs can never make a right". [See
: State of Bihar and others v. Kameshwar Prasad
Singh and Another [(2000) 9 SCC 94].

So far
as the allotment to non-eligible societies is concerned even if it is accepted,
though specifically denied by the Authority, to be true that does not confer
any right on the appellants. Two wrongs do not make one right. A party cannot
claim that since something wrong has been done in another case direction should
be given for doing another wrong. It would not be setting a wrong right, but
would be perpetuating another wrong. In such matters, there is no
discrimination involved. The concept of equal treatment on the logic of Article
14 of the Constitution cannot be pressed into service in such cases. What the
concept of equal treatment presupposes is existence of similar legal foothold.
It does not countenance repetition of a wrong action to bring both wrongs on a
par.

Even
if hypothetically it is accepted that a wrong has been committed in some other
cases by introducing a concept of negative equality the appellant cannot
strengthen its case. It has to establish strength of its case on some other
basis and not by claiming negative equality. (See Union of India v.
International Trading Co. [(2003) 5 SCC 437].

It is
not the case of the petitioners that with any oblique motive the eligibility
criteria has been stipulated. On the contrary after analyzing the issues, a
Committee appointed by the respondent had suggested the norms and the schemes
was accordingly prepared. We do not find any irrationality much less something
which is totally out of context to justify interference.

Clause
4 of the Scheme (Broad Description of Proposed arrangement) indicates that in
order to implement this Court's order there was desirability to discourage
contractors and involve SSG through non-profit organisations. As the scheme
itself provides, the intention is to make the SSGs. fully equipped within a
certain period after these NGOs. go out of the picture and State Government
steps in.

In the
aforesaid background we do not find anything illicit in the impugned criteria
to warrant interference.